Opinion
Opinion By: Andy Beshear, Attorney General; Michelle D. Harrison, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the McCreary County School District ("District") violated the Open Records Act in the disposition of Darlene Fitzgerald Price's October 30, 2018, request for "any and all records regarding the lawsuit filed on May 27, 2003, by Michael Cash vs. Ray Ball et. al .[, including] records detailing the amount of any settlement made to Mike Cash." Ms. Price, Producer and Host of "Truth or Politics," also requested "any and all records regarding any lawsuit by Lori Foster against anyone at the McCreary County School District [, including] records detailing the amount of any settlement to Lori Foster." In a timely written response per KRS 61.880(1) , Timothy Crawford, McCreary County School Board Attorney, responded on behalf of "Superintendent and Custodian of Records Michael M. Cash." Mr. Crawford stated, "The School District does not have any records responsive to your requests."
Ms. Price appealed on November 5, 2018, noting that in the "Summary Report," a copy of which she attached to her appeal, Mr. Crawford was the attorney of record "and would in fact know of any records regarding any settlement. " Relying implicitly upon 15-ORD-001, Ms. Price also emphasized that a settlement agreement involving a public agency is a "public record" within the meaning of KRS 61.870(2). 1 Ms. Price referred generally to requests that she made in May 2017 for documentation regarding the public funds expended on remodeling the School Board offices, noting the responses of the District consistently denied the existence of any records beyond those provided. 2
Upon receiving notification of Ms. Price's appeal, Mr. Crawford supplemented his response on behalf of the District. Mr. Crawford stated, "the District does not have any records which detail any amount made or paid to Mr. Cash as a settlement. The District does not have any records related to any monies paid to Mr. Cash as a settlement in the referenced lawsuit. " He further indicated that Mr. Cash was not the Superintendent or Custodian of Records at the time of the litigation and is not aware of whether his predecessors possessed any responsive documents. 3 Mr. Crawford further advised, "I spoke with my co-counsel, Larry Bryson, by email and he said his file was shredded last year on his 10-year retention policy." 4
Upon receiving Ms. Price's appeal, Mr. Crawford searched his files and located an Agreed Order of Dismissal and a copy of a Settlement Agreement and Release, which did not contain any cash settlements made or paid to Mr. Cash. 5 Accordingly, the District reiterated that no such documents exist because Mr. Cash did not receive a cash settlement. With regard to any records pertaining to any lawsuit by Lori Foster against the District, it maintained that no responsive documents existed.
Our scope of review in resolving the present dispute is defined at KRS 61.880(2), pursuant to which, the Attorney General "shall review the request and denial and issue . . . a written decision stating whether the agency violated provisions of [the Open Records Act] ." See 09-ORD-186; 12-ORD-065. Further, this office has consistently recognized that "it is not, in general, within our statutory charge to resolve questions of fact or to otherwise act as a trier of fact." 09-ORD-120, p. 4. Our duty is not "to conduct an investigation in order to locate records whose existence or custody is in dispute," 01-ORD-36, p. 2, nor is the Attorney General's Office "empowered to substitute its judgment for that of a public agency in deciding which records are necessary to ensure full accountability. " 08-ORD-206, p. 1.
The right to inspect only attaches if the records in dispute are "prepared, owned, used, in the possession of or retained by a public agency. " KRS 61.870(2); 02-ORD-120, p. 10. A public agency violates KRS 61.880(1) , "if it fails to advise the requesting party whether the requested record [s] exist[]," but discharges its duty under the Act in affirmatively indicating that no such record[s] exist[], or advising that it lacks possession and explaining why, following a reasonable search, as the District ultimately did here. 13-ORD-052, p. 3; 99-ORD-98; 04-ORD-205; 12-ORD-065; 14-ORD-049.
Although the intent of the Open Records Act has been statutorily linked to the intent of Chapter 171 of the Kentucky Revised Statutes, pertaining to management of public records, at KRS 61.8715, the Act only regulates public access to records that currently exist and that are in the possession or custody of the public agency to which the request is directed. "It does not impose an obligation on agencies to create, procure, or retrieve a record to accommodate a request." 99-ORD-202, p. 5. 6 Accordingly, our decisions in disputes arising under the Open Records Act are generally limited to two questions: Whether the public agency prepared, owned, used, possessed, or retained the requested records, and, if so, whether the records are open to public inspection. However, a public agency must explain the nonexistence of the records or its lack of possession, if appropriate. 94-ORD-141. See KRS 61.880(2)(c);
Eplion v. Burchett, 354 S.W.3d 598, 604 (Ky. App. 2011) (declaring that "when it is determined that an agency's records do not exist, the person requesting the records is entitled to a written explanation for their nonexistence" ). When, as in this case, a public agency denies that certain records exist in the possession or custody of the agency, further inquiry is not warranted absent objective proof to the contrary. 05-ORD-065, pp. 8-9; 11-ORD-137. The District cannot produce that which it does not have nor is the District required to "prove a negative" in order to refute a claim that certain records exist in the possession of the agency. See
Bowling v. Lexington Fayette Urban Cty. Gov't, 172 S.W.3d 333, 340-341 (Ky. 2005); 11-ORD-037 (denial of request for nonexistent records upheld in the "absence of any facts or law importing the records' existence"); 15-ORD-059.
However, the District was required to make "a good faith effort to conduct a search using methods which [could] reasonably be expected to produce the records requested." 95-ORD-96, p. 7. It should initially have specifically identified the steps taken to identify and locate any such records per the standard of 95-ORD-96 in order to satisfy its burden of justifying the denial per KRS 61.880(2)(c). See KRS 61.880(1). A reasonable search would have encompassed more than counsel's files, and should have included, for instance, the "District Litigation File (Court Case File)," which "documents the court cases that arise from the school district being sued or suits brought by the school district against others." Records Series L5356, State Agency Records Retention Schedule, Public School Districts . The District is required to maintain such a file permanently and it may contain the "case information, motions, judgment, affidavits, transcripts, appeals, and supporting documentation. " The record is unclear as to whether the District maintains a Litigation File.
Having denied that additional documentation exists, after ultimately conducting a search in good faith ( see 95-ORD-96) upon receipt of Ms. Price's appeal, the District now finds itself in the position of having to "prove a negative" in order to conclusively refute Ms. Price's unsubstantiated claim that additional responsive documents were not only created to begin with, but also still exist in the custody, possession, or control of the agency. The Kentucky Supreme Court has recognized that "allowing public agencies to avoid judicial review by denying a record's existence . . . remove[s] accountability from the open records process," but further acknowledged that public agencies may be unreasonably burdened with "the unfettered possibility of fishing expeditions for hoped-for but nonexistent records . . . " if required to "prove a negative" in order to refute a claim that certain records exist, "presumably by presenting evidence of its standards and practices regarding document production and retention, as well as its methods of searching its archives." Bowling 172 S.W.3d at 340-341. The Court held "that before a complaining party is entitled to such a hearing [to refute the agency's claim that records do not exist], he or she must make a prima facie showing that such records do exist." Id. See 07-ORD-188; 11-ORD-209; 12-ORD-012. However, "a record's existence can be presumed" at the administrative level "where statutory authority for its existence has been cited or can be located." 11-ORD-074, p. 3. In order to ensure that the Open Records Act is not "construed in such a way that [it] become[s] meaningless or ineffective," Bowling 172 S.W.3d at 341, "the existence of a statute, regulation, or case law directing the creation of the requested record" creates a rebuttable presumption of the record's existence, which a public agency can overcome "by explaining why the 'hoped-for record' does not exist." 11-ORD-074, p. 4.
Here, the record lacks any objective proof to refute the District's position that it, or counsel acting on its behalf, does not possess additional documents responsive to Ms. Price's October 30 request or May 2017 requests. The Attorney General has no basis upon which to find that the District committed a violation of the Act in the disposition of Ms. Price's request under these circumstances. Compare 11-ORD-105. In the absence of any legal authority requiring the District to create or maintain such records, or any objective proof to refute its explanation of the reason that no additional responsive documents exist in the possession of the agency, this office affirms the denial of Ms. Price's request.
Either party may appeal this decision may appeal by initiating action in the appropriate circuit court per KRS 61.880(5) and KRS 61.882. Pursuant to KRS 61.880(3), the Attorney General shall be notified of any action in circuit court, but shall not be named as a party in that action or in any subsequent proceeding.
Footnotes
Footnotes
1 See Lexington-Fayette Urban Cty. Gov't v. Lexington-Herald Leader Co., 941 S.W.2d 469, 472-73 (Ky. 1997); Central Kentucky News-Journal v. George, 306 S.W.3d 41 (Ky. 2010). This assertion is correct but is not dispositive on the facts presented. Compare 11-ORD-212; 17-ORD-095. Because the District has not disputed the public nature of the only existing responsive "Settlement Agreement and Release," that Mr. Crawford ultimately provided to Ms. Price, further discussion of this point is unnecessary.
2 Ms. Price included a copy of each request and the responses of the District to both. Because the record contains no evidence to contradict Mr. Crawford's position that no additional responsive documents exist, and the analysis of the issues presented relative to Ms. Price's October 30 request is equally applicable, further discussion is unnecessary. Insofar as the requests asked for information, rather than public records, "what the public gets is what . . . [the public agency has] and in the format in which . . . [the agency has] it." OAG 91-12, p. 5; 17-ORD-023. See KRS 61.871, KRS 61.872(1), and KRS 61.872(2); 16-ORD-195; 17-ORD-268.
3 Given the ambiguity created as to whether such records existed and were prematurely destroyed, or were not properly maintained by Mr. Cash's predecessors, etc., this office is compelled to clarify that KRS 61.8715 recognizes "an essential relationship between the intent of [the Open Records Act] and that of KRS 171.410 to 171.740, dealing with the management of public records . . .; and that to ensure the efficient administration of government and to provide accountability of government activities, public agencies are required to manage their records according to the requirements of these statutes." Included among "these statutes" is KRS 171.680(1), pursuant to which "[t]he head of each state or local agency [is required to] establish and maintain an active, continuing program for the economical and efficient management of the records of the agency." KRS 171.680(1) is premised on the "widely held, if not axiomatic, view that '[a] written memorial of a transaction in a public office, when made by a public officer, becomes a public record belonging to the office , and not his private property.' 76 C.J.S. Records § 2." 07-ORD-020, p. 6 (emphasis added).
In other words, "[a]n officer who has public records in his or her charge is the mere custodian of those records . . ., the records are not the private property of the officer." 07-ORD-020 (citing 66 AmJur2d, Records and Recording Laws § 5). "The overwhelming weight of legal authority therefore recognizes that '[w]here an officer, duly elected or appointed to office and qualified, demands of his or her predecessor the records pertaining to the office and is refused,' 'mandamus will lie to compel the delivery of books and paper belonging to the office .' 07-ORD-020 (citing McQuillin Mun Corp § 14.21 (3rd Ed.))(emphasis added)."
4 Pursuant to KRS 171.420, the State Archives and Records Commission is authorized to "review and approve schedules for retention and destruction of records submitted by state and local agencies." Additionally, the Commission is charged with the duty to "establish standards for the selective retention of records of continuing value," and KDLA with the duty to "assist state and local agencies in applying such standards to records in their custody." KRS 171.530. The record is unclear as to whether any records that Mr. Bryson previously maintained were his personal copy as opposed to records that he maintained on behalf of the District; if the records were District records, he was not permitted to destroy those records after 10 years under the applicable retention schedule, which mandates permanent retention. See p. 5 of this Open Records Decision.
5 The District also faxed a copy of the Order and Settlement Agreement to Ms. Price in partial compliance with her October 30 request. Accordingly, the related issues are now moot per 40 KAR 1:030 Section 6.
6 This is not to say that a public agency can somehow secret away public records on private premises, and thus avoid the requirements of the Open Records Act." 99-ORD-202, p. 5. Rather, this office has consistently recognized that "lack of actual possession is not a sufficient basis for denying access to records" if the records being sought are being held "at the instance of and as custodian on the [public agency's] behalf[.]" 08-ORD-206, pp. 7, 13. See 00-ORD-207 (settlement agreement in physical custody of insurance carrier); 04-ORD-123 (drainage records in physical custody of City's independent attorney); 05-ORD-015; 06-ORD-147; 08-ORD-206. Compare 96-ORD-41 (holding that Department of Military Affairs properly denied request for documents relating to vending services at air national guard facility where those records were prepared by, and in the possession of, a private corporation, and were never in the Department's possession); 97-ORD-15; 98-ORD-90; 09-ORD-009; 16-ORD-019.